Diversity Reading List

Publisher’s Note: This book examines six modern art trials covering a wide range of legal and artistic considerations … the first in-depth examination of the art trial from every intriguing point of view.

Comment: Of particular interest is chapter 4: Traitor or forger? – Van Meegeren vs. Vermeer, dealing with issues of authenticity, forgery, and art ontology

Abstract: Justifications and excuses are defenses that exculpate. They are therefore much more like each other than like such defenses as diplomatic immunity, which does not exculpate. But they exculpate in different ways, and it has proven difficult to agree on just what that difference consists in. In this paper I take a step back from justification and excuse as concepts in criminal law, and look at the concepts as they arise in everyday life. To keep the task manageable, I focus primarily on excuses and excusing activities, distinguishing them from justifications as well as from other close relatives, in particular, forgiving and pardoning. I draw upon J.L. Austin-s classic ‘A Plea for Excuses,’ but expand on his account, suggesting that we offer excuses for reasons besides those he mentions. My hope is that my examination of excuses and excusing activities will help us rethink our views on just how justifications and excuses differ, views which often are worked out without much attention to how these concepts function in everyday life and to the connection between offers of excuses and justifications and the ‘’rules of civility.’

Comment: Baron explains the typical distinction between justifications and excuses. Her examination of these concepts draws upon Austin’s ‘A Plea for Excuses’, and use of the everyday concept, she presses for a rethink of how philosophers and legal theorists think about excuses.

Comment: An original approach to the morality of civil disobedience and the question of what protections should be enshrined in law for adherence to the dictates of one’s conscience. Particularly interesting because the author argues that a stronger case can be made for permitting and protecting public civil disobedience than can be made for private conscientious objection.

Abstract: The West has created categories of property, including intellectual property, which divides peoples and things according to the same colonizing discourses of possessive individualism that historically disentitled and disenfranchised Native peoples in North America. These categories are often presented as one or both of neutral and natural, and often racialized. The commodification and removal of land from people’s social relations which inform Western valuations of cultural value and human beings living in communities represents only one particular, partial way of categorizing the world. Legal and cultural manifestations of authorship, culture, and property are contingent upon Enlightenment and Romantic notions built upon a colonial foundation. I will argue that the law rips apart what First Nations peoples view as integrally and relationally joined, but traditional Western understandings of culture, identity, and property are provoked, challenged, and undermined by the concept of Aboriginal Title in a fashion that is both necessary and long overdue.

Comment: In this wide-ranging essay, Coombe situates debates about cultural appropriation in the context of colonial power dynamics. She discusses both appropriation of styles and stories as well as alienation of material cultural property. In particular, she criticizes the appeal to Western conceptions of property in these debates, and questions whether Native identity and autonomy can be appropriately protected by subsuming Native intangible cultural property claims under Western frameworks for intellectual property. This is a long and challenging essay, best used for more advanced courses. Alternative texts that capture some of the ideas here include Loretta Todd’s “Notes on Appropriation” (on which Coombe draws), or, for a text that situates some of these ideas in the literature on epistemic injustice, see Erich Hatala Matthes, “Cultural Appropriation without Cultural Essentialism?”.

Abstract: It is widely held that the current refugee Convention is inadequate with respect to its specification of who counts as a refugee and in its assignment of responsibility concerning refugees to states. At the same time, there is substantial agreement among scholars that the negotiation of a new Convention would lead states to extricate themselves from previously assumed responsibilities rather than sign on to a set of more desirable legal norms. In this paper, I argue that states should ultimately negotiate a new Convention, but that first they must alleviate the institutional and motivational constraints that make progress currently unattainable.

Comment: This text provides a clear introduction to the philosophical treatment of the 1951 Refugee Convention. It criticises contemporary international law concerning refugees and asylum, and discusses the constraints to feasability for a new legal regime. This text would work well as an introduction to the philosophical issues involved in granting refugee status, or within a specialized context concerning the right to immigrate/migrate. It would also have a place in a class on human rights that covered greivous human rights violations and their remedy.

Publisher: Does one have special obligations to support the political institutions of one’s own country precisely because it is one’s own? In short, does one have political obligations? This book argues for an affirmative answer, construing one’s country as a political society of which one is a member, and a political society as a special type of social group. The obligations in question are not moral requirements derived from general moral principles. They come, rather, from one’s participation in a special kind of commitment: a joint commitment. This theory is referred to as the plural subject theory of political obligation since, by the author’s definition, those who are party to any joint commitment constitute a plural subject of some action in a broad sense of the term. Several alternative theories are compared and contrasted with plural subject theory, with a particular focus on the most famous — actual contract theory — according to which membership in a political society is a matter of participation in an agreement. The book offers plural subject accounts of both social rules and everyday agreements, and includes discussion of political authority and punishment.

Comment: Some chapters in Part 1 would work very nicely as introductory reading to the problem of political obligation. As the book progresses it homes in on the theory of social groups and Gilbert’s theory of political obligation as joint commitment. As such, the later chapters are more suited to specialised readings.

Abstract: I argue that the death penalty has only limited deterrent effect. It cannot deter three types of offenders: (1) those who do not fear death; (2) those who are not rational and cannot take into consideration the consequences of their actions; (3) those who are confident that they won’t be caught. Thus, in order to deter potential murderers, we must consider new ways to deter these three types of offenders.

Comment: The article is written for for a general audience. It considers the deterrence argument in favor of the death penalty. It should be useful for GE courses that cover the topic of the death penalty.

Abstract: A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant.This article revisits the concept of deterrence and defend a more plausible deterrence theory of punishment – the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality.

Comment: This text can be used in courses such as Philosophy of Law and/or Social and Political Philosophy.
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Abstract: We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others’ exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others

Comment: Good introduction to the topic of consent as it makes clear both how strange it is as a power and how pervasive it is in our moral practices. Goes on to provide an interesting argument for consent as a subjective mental state and offers an account of what that might be. Could support a lecture or seminar on consent, or would make good further reading if the topic is only touched on briefly.

Publisher’s Note: This book undermines privacy scepticism, proving a strong theoretical foundation for many of our everyday and legal privacy claims. Inness argues that intimacy is the core of privacy, including privacy appeals in tort and constitutional law. She explores the myriad of debates and puts forth an intimacy and control-based account of privacy which escapes these criticisms.

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Abstract: We defend the view of some feminist writers that the notion of silencing has to be taken seriously in discussions of free speech. We assume that what ought to be meant by ‘speech’, in the context ‘free speech’, is whatever it is that a correct justification of the right to free speech justifies one in protecting. And we argue that what one ought to mean includes illocution, in the sense of J.L. Austin.

Comment: Very useful for an ethics course element on free speech, or for a feminist philosophy course, or indeed a philosophy of language (trap with the latter is that essays might become too ‘ethics’-y). Would definitely be suitable as a core text, with set questions focusing on different elements of the paper to draw out the key arguments. Students could be asked whether they agree with this definition of free speech, and to apply it in different contexts that have recently been in the news.

Abstract: This paper shows how the mythology surrounding rape enters into a criterion of reasonableness which operates through the legal system to make women vulnerable to unscrupulous victimization. It explores the possibility for changes in legal procedures and presumptions that would better serve women’s interests and leave them less vulnerable to sexual violence. This requires that we reformulate the criterion of consent in terms of what is reasonable from a woman’s point of view.

Comment: This text provides an overview of the the legal status of “date rape” in the US. It would fit well in a class covering the idea of mens rea and/or actus reus – such as a class on philosophy of law. It would also be of use in a class covering the concept of consent, rape and sexual violence, or the meaning of being ‘reasonable.’

Introduction: The social-contract tradition in moral and political thought can be loosely characterized as an approach to justification based on the idea of rational agreement. This tradition contains a variety of theories that are put to a number of uses. My exclusive focus here will be contract views that rely upon hypothetical, as opposed to actual, consent. My main objective is to defend hypothetical-consent theories against what I call the standard indictment: the claim that hypothetical consent cannot give rise to obligation. I begin by explaining the standard indictment in more detail; next, I argue that the standard indictment does not apply to moral, as contrasted with, political contractarianism; finally, I argue that, on a certain understanding of the relation between political legitimacy and political obligation, the standard indictment does not count against political contractarianism.

Comment: Defends the significance of hypothetical consent as the standard of justification appropriate for establishing moral obligation in a broadly constructivist view. Very useful as specialised or further reading on moral and political obligation.

Abstract: Disagreement persists about when, if at all, disenfranchisement is a fitting response to criminal wrongdoing of type X. Positive retributivists endorse a permissive view of fittingness: on this view, disenfranchising a remarkably wide range of morally serious criminal wrongdoers is justified. But defining fittingness in the context of criminal disenfranchisement in such broad terms is implausible, since many crimes sanctioned via disenfranchisement have little to do with democratic participation in the first place: the link between the nature of a criminal act X (the ‘desert basis’) and a fitting sanction Y is insufficiently direct in such cases. I define a new, much narrower account of the kind of criminal wrongdoing which is a more plausible desert basis for disenfranchisement: ‘political wrongdoing’, such as electioneering, corruption, or conspiracy with foreign powers. I conclude that widespread blanket and post-incarceration disenfranchisement policies are overinclusive, because they disenfranchise persons guilty of serious, but non-political, criminal wrongdoing. While such overinclusiveness is objectionable in any context, it is particularly objectionable in circumstances in which it has additional large-scale collateral consequences, for instance by perpetuating existing structures of racial injustice. At the same time, current policies are underinclusive, thus hindering the aim of holding political wrongdoers accountable.

Comment: This paper critically assesses existing arguments in the philosophy of criminal law on the permissibility of criminal disenfranchisement; develops a novel negative retributivist argument; argues that current criminal disenfranchisement are much too overinclusive, but also underinclusive.